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HomeMy WebLinkAbout09-27-04 Public Services MinutesDublin City Council MINUTES OF PUBLIC SERVICES COMMITTEE MEETING Monday, September 27, 2004 — 7:00 p.m. Attending: Ms. Salay, Chair Mr. McCash Mr. Reiner Mr. Keenan Mayor Chinnici - Zuercher Mr. Smith, Assistant Law Director Ms. Crandall Ms. Salay stated that staff will provide a report on the proposed no smoking legislation and Council will then have a discussion about the future public forums. She contacted the Dublin Chambers of Commerce and they have some suggestions for including their membership in the discussion. Staff Report Stephen Smith, Jr., Assistant Law Director reported that as part of the packet, there were two memorandums from the Law Director's office. The first is an updated no smoking ordinance draft. Since the last memo to Council, many cities in the area have adopted or are close to adopting a version of the clean air legislation. This draft shows what some of the cities have done in terms of revisions to the Columbus legislative model. The second memo relates to the legal issues of the Columbus ordinance. Staff was asked to research the legality of the Columbus ordinance. 1. In Section 94.11 of the proposed Dublin ordinance, prohibiting smoking in all areas immediately adjacent to the ingress and egress. This provision, in staffs opinion, would be difficult to enforce due to the lack of definition of "immediately adjacent, "nor does the Code provide any direction of exactly what this means. If someone were cited under this, it would be difficult to obtain a conviction. Staff suggests including some type of feet requirement, i.e., within 5 or 10 feet, to have a standard to apply. Mr. McCash commented that Columbus did have a 20 -foot provision and removed it. Mr. Smith stated that if there was a circumstance where a smoker was in front of the door, perhaps 15 feet away but no longer on that business property, is the business holder responsible, even though they were within that window but no longer on the business property? This provision is just difficult to enforce as written in the Columbus ordinance. Mr. McCash commented that the other issue is that ingress and egress are exits or doors, but this provision talks about areas immediately adjacent to ingress and egress but continues, not prohibiting smoking near them, but states to ensure that no tobacco smoke goes into windows, ventilation systems or other means. Mr. Smith stated that he agrees, as smoke can enter through these other means. In Powell, they only prohibit smoking immediately adjacent to the main ingress and egress of the building, so apparently smoking would be permitted near back doors, etc. Mr. Keenan noted that there are patios at Tucci's and Oscar's with tables which are located on the main ingress and egress. How would that affect them? The Columbus ordinance apparently allows smoking on patios. Public Services Committee Minutes of September 27, 2004 Page 2 Mr. Smith stated that under the Columbus ordinance, the patio is non smoking if it is capable of being enclosed, regardless of the material or removable nature of the walls. Mr. McCash asked how you define cable — a post where plastic barriers could be attached? This could be an issue. Mr. Smith stated that these are good questions. Some of these matters will not be settled until cases are brought forward. (At this point, Mr. Lecklider arrived) Mr. Keenan asked how this would apply to a patio such as those at Tucci's or Oscar's — would they be allowable under the Columbus ordinance? In terms of the distance from ingress or egress, they would not seem permissible. Ms. Salay suggested that Council focus on the overarching intent to protect the public from secondhand smoke. It seems that for someone walking by a patio where smoking is allowed, there would be little impact from secondhand smoke. Perhaps a limit of 5 or 10 feet from the doorway, on the existing business property would address the issue. Would that satisfy the issue? Mr. Smith responded that it can be written any way Council prefers. It is a matter of what Council is comfortable with and what is enforceable in court in the future. Mayor Chinnici - Zuercher stated that Ms. Salay's point is that when a person walks out of a building and three people are smoking under a building overhang, they are exposed to a high level of secondhand smoke. Mr. Reiner agreed, adding that this could occur while standing in line outside for a restaurant. He believes that a provision should restrict smoking outside of a reasonable foot limit from ingress and egress. Ms. Crandall asked how this would apply to a tent set up on a patio. It was the consensus that smoking would not be allowed in such a tent. Mr. Keenan stated that Powell passed a ban altogether on smoking on patios. Mr. Smith stated that the Powell ordinance is more restrictive than the Columbus ordinance in some respects. Mr. Reiner suggested that the distance from ingress /egress be resolved. He would be satisfied with ten feet. Mayor Chinnici - Zuercher stated that this would be acceptable, assuming that the ten feet lies within the property limits of the establishment. Mr. Smith stated that some objective standard would be advisable. Ten feet would be fine, and staff believes it would be enforceable in court. Mr. Keenan asked if this would be defined as ten feet from a doorway. Public Services Committee Minutes of September 27, 2004 Page 3 Mr. Smith stated that they would leave this as ten feet from ingress or egress. It could be expanded as Mr. McCash suggests to ten feet from ventilation systems. Mr. Keenan stated that he wants people to understand it. If Council wants to outlaw smoking on patios altogether, like Powell, that is yet another issue. Mr. McCash stated that from a ventilation standpoint, the distance from an outdoor air intake system for the mechanical systems will be an issue to be clarified. Mr. Smith stated that from the legal perspective, as long as there is an objective standard to put someone on notice as to what type of behavior is permitted, the legal requirements will be satisfied. Ms. Salay stated that perhaps it could state that a person cannot smoke where the smoke will be taken into the air intakes — the distance could vary. Mr. Smith stated that this may be somewhat subjective. A feet requirement would be more objective. Ms. Salay suggested ten feet from ingress /egress, air intake systems and open windows. Mr. Reiner stated that there are six members present tonight. He would personally favor banning smoking completely from the patios, but will listen to others' viewpoints and then move on. Mr. Smith stated that if Council wants to do this, a good definition of what constitutes a patio would be needed. Mr. McCash stated that if smoking is to be banned, Council could also consider banning smoking from hotels completely. Ms. Salay stated that at this point, the discussion is focused on the ordinance provision regarding patios at restaurants and bars. She is interested in hearing the input from owners of bars and restaurants with patios — would it be easier just to ban smoking altogether or to allow it on their patios? Mr. Keenan stated that later public input will provide this information from business owners. At this point, he would advocate 10 feet and if there is overwhelming support for banning smoking altogether, that can be modified. Mr. McCash stated that nothing would preclude a business from banning smoking completely from their patio, even if the City has a provision about ten feet from ingress /egress. Public Services Committee Minutes of September 27, 2004 Page 4 Mayor Chinnici - Zuercher stated that it is unlikely that business owners would propose banning smoking from their patios if the City does not do so. If this is to be included, it must be done at the Council level. Mr. Keenan stated that many will not come forward due to a fear of alienating their existing customers. Mr. Lecklider stated that he is confused about the sequence regarding the no smoking legislation. It sounds as if the intent tonight is to devise an ordinance. All along, he has taken the position that Council does not know what landscape will exist post November 2nd. What will the business interests argue against? Businesses do not yet know what the landscape will be at this point, prior to the Columbus referendum on November 2. Their comments regarding Dublin's ordinance would depend upon the outcome of the election. Mr. Reiner stated that whether or not Columbus passes or defeats the referendum, Dublin should have a no smoking ordinance in place. It is the right thing to do for the community. Mr. Lecklider stated that is different — it seems that Dublin is putting businesses who might be opposed to this ban at a disadvantage. What will they argue against? Ms. Salay stated that she thought that Council had agreed that the Public Services Committee was to meet to determine what Council wants included in the ordinance and that Council would then present the ordinance for public participation. That is why Council is meeting tonight — to review other ordinances from surrounding communities and to discuss the enforcement issues. The goal is to have an ordinance to bring to Council from the Committee, although all but one Council member is already present for this Committee meeting tonight. Mr. Lecklider stated that he wants to understand the sequence and when the public's opportunity for input will be, in view of the fact that only Dr. Crane is present tonight at this session. Mayor Chinnici - Zuercher commented that Ms. Salay had discussion with Dr. Crane today, and he was aware that the Committee was not planning to take public testimony at this point in the process. Ms. Salay reiterated that her understanding was that Council's desire was to have an ordinance prepared, to then take public testimony in some fashion, and then to vote upon an ordinance at the November 15 Council meeting, which is the first meeting following the Columbus referendum. That is why the Committee is working on the provisions within the ordinance tonight. Public Services Committee Minutes of September 27, 2004 Page 5 Mr. Keenan stated that this process will also allow legal counsel to review the provisions proposed to ensure that they are enforceable. Mr. Reiner stated that he does not believe there is a lot of opposition to the no smoking legislation. People in California have told him that their legislation was passed long ago, and the statistics throughout the state show that the restaurants and bars have not experienced a loss of business as a result of the no smoking legislation. Ms. Salay stated that if all Council Members are comfortable with the provision of ten feet from the point of ingress and egress and from air intakes or ventilation systems or open windows. What about a situation where a door is immediately adjacent to a restaurant patio? Could the adjacent tables to the door be non smoking? Mr. Smith agreed. Mr. Smith noted that in the Columbus ordinance, business owners are penalized for violations, but not those who are smoking. This is problematic. As the Columbus ordinance is written, there is no incentive for a person not to smoke in a restaurant as they will not be charged. Mr. McCash stated that in Arlington, there is a penalty for the smoker. But the Columbus ordinance does not take into consideration whether the business owner knowingly allows smoking. Mr. Smith stated that the Columbus ordinance is a strict liability ordinance, meaning that intent does not matter. It does not matter what precautions the business owner takes to prohibit smoking; if someone lights up, the business owner is charged under the ordinance. That is how it is written. Mr. Smith stated that Arlington imposed the same penalty on the smoker as on the business where the smoking takes place. The penalty is a minor misdemeanor up to a $150 fine. He added that under Ohio law, a minor misdemeanor also can include the potential for up to 30 hours of community service. If Council wants this to be a fine only, they can make this an unclassified misdemeanor and make it a fine of whatever amount Council desires. Ms. Salay stated that she personally favors this, because a business could make a decision to pay the fine as a cost of doing business. Mr. Smith stated that he wanted Council to be aware of this possibility of community service. Ms. Salay summarized that Council has agreed to the Arlington version of the ordinance in terms of the punishment for both the smoker and the business and that this would be a minor misdemeanor which is now punishable by up to a $150 fine and up to 30 hours of community service. What about repeat offenders — is there a progressive penalty section? Public Services Committee Minutes of September 27, 2004 Page 6 Mr. Smith responded that this ordinance does not have a progressive penalty section as some other ordinances in the Dublin Code. The first violation is a warning, the second violation and those thereafter are minor misdemeanors. Ms. Salay asked if the level of misdemeanor must be increased to have a more severe penalty. Mr. Smith responded that this is possible. It is up to $150 per violation under current law. Theoretically, there could be more than one offense in any one given evening. The ordinance is a bit unclear about who exactly would be cited — the owner, operator, manager, holder of the liquor permit are all possible citations. At this time, there is no further progression of the penalty. Mayor Chinnici - Zuercher stated that who is being charged should definitely be clarified. Mr. Lecklider stated that first, the strict liability issue should be resolved. It is a separate issue from who will be cited. Mr. Lecklider stated that the issue is whether an owner is cited, whether or not they are aware of the violation. Mayor Chinnici - Zuercher stated that she would favor charging the owner, as they would know if smoking is taking place. Mr. McCash stated that if the owner knows and does something to address the problem, that is one thing; if they are permitting smoking, that is another thing to charge them with. Ms. Salay asked how this determination is made. Mr. McCash responded that currently, it would be strict liability — someone lights up a cigarette, the owner can be charged. Mr. Reiner stated that stops owners from allowing people to smoke. They must train their staff to oversee this and tell people to stop smoking if they do so. An owner would not be charged who stops people from smoking. Mr. McCash stated that he has an issue with having such a provision in the ordinance to punish an owner. The business owner must secure legal representation to address this, even though they were simply trying to do the right thing. Mayor Chinnici - Zuercher asked how the language would be crafted, then, to ensure that it is required that they do attempt to prohibit smoking — signage, no ashtrays, etc. Mr. McCash suggested that there is a general prohibition, and the word "knowingly" is inserted in front of "permit smoking ". Thus, no proprietor of a public place or place of employment shall knowingly permit smoking. That changes the standard — if they are knowingly allowing the smoking, they are violating the ordinance. Public Services Committee Minutes of September 27, 2004 Page 7 Mr. Smith commented that this would work, as it addresses the strict liability issue. Thre are other ways to address this with different mental states, such as negligently, recklessly, or by inserting some type of affirmative defense for business owners who take steps to stop the activity when they see it. Mr. Reiner commented that sounds more credible, stopping the smoking when a business owner witnesses it. Mr. Smith stated that if Council is not comfortable with the strict liability provision they could insert the mental state language. Ms. Salay asked what specific language will hold the business owner most liable, yet provide him an "out" if he /she is not aware of the activity due to being out of the room when it took place. Mr. Smitih responded that "negligent" would be the lowest in terms of mental states; knowingly would be near the top. Mr. Keenan stated that the law should be fair, and the strict liability provision does not seem to be fair to the business owner. It is similar to the intentional tort or the Ohio stop gap where if management could have or should have known, they are held accountable under the Ohio employers liability rulings. It is a very difficult standard. Mr. Smith commented that strict liability is even a step up from that — at least there, you have a mental state in terms of could have or should have. Mr. Keenan stated that if a business owner is negligent — if he is aware of such activity taking place, then he should be accountable. Ms. Salay summarized that the language, "negligently" would then be the language that would hold the business owner most accountable. Mr. Reiner agreed that this would be fair. Mr. Smith stated that one problem is that once you start to factor a mental state into this, you create in essence some type of defense, i.e., didn't know, wasn't negligent. You could add some type of affirmative defense which the owner could be charged, but he could state that he stopped the activity when he became aware of it. The affirmative defense position would come into play after a business owner is charged. Ms. Salay stated that the business owner would then be charged, come into Mayor's Court, and then the business owner would assert affirmative defense. Mr. Keenan commented that the public will self police this to a significant degree. Public Services Committee Minutes of September 27, 2004 Page 8 Mr. Lecklider added that the distinction is that where we impose a strict liability standard allowing for an affirmative defense — there is a greater burden on the business owner. The business owner is already involved in the process if they are cited. Ms. Salay stated that she is not concerned with this. The business owner would have to appear in Mayor's Court and could explain the circumstances surrounding the citation. They would have the opportunity to make their case. With a repeat offender, however, a pattern would emerge about that business owner's efforts to enforce. Mr. Lecklider stated that this is no small matter for a business owner. He /she may feel he has to retain legal counsel, take time off work — there are expenses involved. He may be fined or may have community service, so there are consequences. Ms. Salay asked if he and Mr. McCash are therefore suggesting that a state of mind be included, such as negligently permitting smoking? Mr. McCash responded that he does recommend including a negligence standard as opposed to an affirmative defense. Mr. Reiner stated that he does not believe the Police will cite someone under all circumstances. Mayor Chinnici - Zuercher commented that she is not as worried about the Police in this regard as about citizens who may call and report that smoking is taking place in an establishment. Business owners are very aware of their rules such as no smoking. It is a matter of how an establishment is operated. Others will complain and self police those who violate rules. Mr. Lecklider asked whether, under that scenario described, does the strict liability standard allow for that business owner to be cited? Mr. McCash stated that this is the key - the Police may be pressured into issuing citations by those who complain. A balanced approach is needed. Mr. Lecklider asked Mr. Smith, under the scenario discussed, is that one under which a business owner could be cited? Mr. Smith responded affirmatively. The Police officers do have discretion about whom they cite, but his experience indicates that they would likely issue a citation. Ms. Salay asked what Mr. Lecklider about his preference to resolve this. Mr. Lecklider stated that he wants to be clear — he does not want to see people or business owners carelessly allowing smoking in their establishments. In the scenario described, he would assume that the smoker would be cited as well. Ms. Salay agreed. She asked if he would be comfortable with "negligently allowed smoking, ", "knowingly," or including an affirmative defense clause? Public Services Committee Minutes of September 27, 2004 Page 9 Mr. Lecklider responded that he would like to see the next highest standard, absent holding the owner strictly liable. Mr. Smith stated that "willful and wanton" is the highest standard — showing no regard whatsoever. Does he mean "highest" in terms of more restrictive or least restrict? Mr. Lecklider responded he means more restrictive, but below strict liability. Mr. Smith summarized that negligent would be the lowest standard. There are many ways around "knowingly." Following discussion, it was the consensus of Council to include the negligence standard. Discussion followed about options for penalties. Mr. Smith stated that Council can make the penalties higher than state law, but they cannot make this a felony. Mayor Chinnici - Zuercher stated that if someone is a consistent abuser — business owner or patron - they will not change their behavior without an escalating penalty. Mr. Smitih stated that all the municipalities whose statutes he has examined for reference have left it as a minor misdemeanor. Powell did eliminate the first offense free and cites offenders immediately. But Dublin can write the penalty as they believe appropriate. Mr. Keenan suggested that staff bring some recommendations in terms of penalties. Mr. Lecklider suggested that a third offense in 12 months' time would bring higher penalties. Mr. Smith stated that there are several such examples in Dublin's ordinance — the degree of misdemeanor increases with repeat offenses in a certain time period. For some code enforcement violations, there are progressive penalties. It was the consensus of Council to include progressive penalties for repeat offenders. Mr. Smith noted that there are five levels of misdemeanors — how high would Council want to go with how many violations? Mr. McCash suggested that with more than four violations in 12 months, it becomes an M -1. This sends a serious message to a business owner. Mr. Smith stated that if anything is made an M -4 with the possibility of jail time, it gets their attention. With an M -4, there is probation with jail time as a penalty for violation. It is not the six months' jail time with a misdemeanor of the first degree, but having the threat of jail time does get someone's attention. Mr. McCash stated that the advantage with an M -1 is that they can be given 30 days or a higher fine of up to $1,000. Public Services Committee Minutes of September 27, 2004 Page 10 Mr. Smith stated that there could instead be a progressive fine system of up to $1,000. Mayor Chinnici - Zuercher stated that the City pays for the costs of jailing someone, however. Mr. McCash stated that for this reason, he would prefer the M -1 with jail time and a fine of $1,000 which would offset the costs of the jail time. Having an M -4 with a $250 fine and jail time results in more costs for the City. The other question is who is jailed: the business owner or the manager on duty at the time of the offense? Mr. Smith stated that according to the statute, it could be one of five people. Mr. Keenan stated that the biggest "teeth" would be with the liquor permit. That would have the most consequences for the owner. Mr. Smith stated that the prohibition of Section 94.11 states that "no proprietor shall" — the statute defines proprietor as owner, manager, operator, liquor permit holder or other person in charge or control. He reads this to mean that any of the five persons can be cited. Ms. Salay stated that it would then provide the ability to cite anyone of this group — not the corporation itself, but the manager or operator on duty most likely. Ms. Salay asked for Council's input about the level of misdemeanor. Mayor Chinnici - Zuercher indicated that she supports progressive cash penalties plus community service at some point. Mr. Smith stated that this would likely be $100, $200, $300, with a $500 fine for any offense beyond three. Mr. Keenan agreed with having the latitude to impose community service as suggested. Mr. Smith stated that if this was an unclassified misdemeanor, he is not certain if community service can be included. Mr. Lecklider asked if community service could be an option under a minor misdemeanor charge for the first several offenses? Mr. Smith responded that if a progressive monetary fine is included, that would basically be an unclassified minor misdemeanor. He is not certain that community service could be added to an unclassified minor misdemeanor. It would have to be somewhere on the scale between a minor and a first degree misdemeanor to add this community service. He will further review this. Ms. Salay summarized that Mayor Chinnici - Zuercher is supporting a progressive cash fine and the option of community service without jail time. Mr. Reiner supports this. Public Services Committee Minutes of September 27, 2004 Page 11 Mr. McCash stated that the threat of jail time is needed as an option - this should be a classified violation. Mayor Chinnici - Zuercher stated that it could be classified. Mr. Smith stated that if a fine only system is established, that would fall into the unclassified under Dublin's Code. However, you could have it be a misdemeanor of the third degree and have a maximum of $500. It can be set up either way — the question is whether to include the possibility of jail for subsequent offenses or not. Mr. McCash stated that he believes jail time should be included. A business could establish a budget to cover the fines each year, but the possibility of jail time will be taken seriously. Mr. Smith stated that he understands this point, having experience with code violations and the impact on repeat offenders. Mr. Keenan commented that he believes there will be much self policing on this issue — he does not like the idea of imposing jail time. He prefers a fine system as Mayor and Mr. Reiner have suggested. Mr. Lecklider supports holding out the threat of jail time upon the third or fourth offense within a specified period of time. He also supports the increased fines. There is always the discretion not to impose jail time. Mr. McCash agreed. Having jail time as an option is a motivation for compliance. Mr. Reiner commented that the ordinance can always be amended to include jail time, if it is deemed necessary. He believes that jail time sounds somewhat ridiculous. He believes that people will comply with the ordinance. Mr. Smith commented that the intent is to cite the offenders into Mayor's Court. Regarding the jail time threat, those cited into court have the right to transfer the case to the appropriate municipal court. Mayor Chinnici - Zuercher noted that a municipal court would not jail a person for these type of offenses. Mr. Smith agreed. Mr. Keenan suggested that the ordinance can always be amended at a later date if it is too harsh. Ms. Salay asked what the Council is agree to do in this regard. She summarized that what she is hearing is that Council would like the ordinance to be written with a progressive cash fine system with the option of community service. Mr. Smith stated that this would not be possible Mayor Chinnici - Zuercher suggested that it would have to state "up to $500 or $1,000 and /or community service." Public Services Committee Minutes of September 27, 2004 Page 12 Mr. Smith stated that to do the progressive fines, these would have to be classified somewhere in the misdemeanor scale, either minor misdemeanor through M1, 2, 3 or 4. The minor misdemeanor provides the community service option but only imposes a fine of up to $150. Mr. Keenan suggested community service for the business owner and providing fine progression for the violator. The time will be more important to the business owner, and the fine more effective for the violator. Mr. Smith responded that his guess is that it probably would not work, because, legally, for each incident, there is the ability to cite five people, but realistically, only one will be cited. It may be a case of who is working or present in terms of who is cited. If this is limited now, the options for the officer or code enforcement responding are limited. Mr. Keenan suggested that two persons be cited — the person on duty and the permit holder. Mr. Smith responded that it is difficult to secure a criminal conviction against two people for one violation. In code enforcement, there is the ability to cite the property owner and who lives in the property, but one or the other party is actually pursued. He is not familiar with a situation where multiple people are cited for the same violation. Mayor Chinnici - Zuercher asked if staff would draft the ordinance with whatever misdemeanor categories are necessary in order to have fines up to $1,000 and /or community service. Mr. Smith responded that if it is drafted in this way, up to $1,000, would require misdemeanor of the first degree which also brings in the possibility of six months in jail. Mayor Chinnici - Zuercher asked what option is available that would not include jail. Mr. Smith responded that a misdemeanor of the fourth degree provides for up to a $250 fine and up to 30 days in jail. The misdemeanor of the third degree provides for a $500 fine and up to 60 days. The M2 provides up to 90 days and a $750 fine. Jail can be included for all except for minor misdemeanor — minor misdemeanor is community service only. Mr. Lecklider noted that every succeeding level beyond minor misdemeanor includes the possibility of jail time, if the progression that exists already is employed. Mr. McCash added that the only reason a person would want to transfer the case downtown is that there is a higher possibility of jail time in Dublin versus the downtown courts. Mayor Chinnici - Zuercher stated that she believes that this particular issue is something Council would want managed in Dublin as it impacts Dublin businesses. It is a different issue than a traffic ticket. Public Services Committee Minutes of September 27, 2004 Page 13 Mr. McCash responded that speeding tickets in neighborhoods are handled in Dublin — why shouldn't these cases then be handled in Dublin? Mayor Chinnici - Zuercher would prefer not having the jail penalty, but apparently that is not possible. Would the unclassified allow for a progressive fine system? Mr. Smith stated that it will allow for that, but not for community service as well. He wil research this item. Mr. Smith noted that in Section 4, regarding the federal government establishing standards that are acceptable to the CDC, he believes this portion is unnecessary. Council can amend any ordinance at a future date, should it become necessary. It was the consensus of Council to strike this portion. Ms. Salay asked if the Law Department now has clear direction for the redrafting. Mr. Smith agreed that he does. He asked about the progressive fine — that would be against both the business and the smoker? Council agreed. Ms. Salay asked if the fines must be identical for each party. Mr. Smith responded that it can be written in any manner Council desires. Mayor Chinnici - Zuercher that she does not want the disposition to be the same for both the owner and the smoker. Mr. Smith stated that, theoretically,the system could be set up to send the smoker to jail, with just a monetary fine for the business owner. The prohibition against a person smoking and that against a business allowing smoking is in two different sections of the ordinance and could result in two different penalties. Ms. Salay stated that Council needs to decide where and when they will take public testimony on the ordinance. Mr. McCash stated that he has some other questions before proceeding.